THE HON'BLE Dr. JUSTICE G. RADHA RANI
AND
THE HON'BLE SRI JUSTICE SAMBASIVA RAO NAIDU
Crl.Appeals.No.973, 1166 of 2013 AND 495 of 2015
COMMON JUDGMENT: (Per the Hon'ble Sri Justice SambasivaRao Naidu)
Three accused persons who were tried together in
S.C.No.407 of 2013 on the file of Principle District and Sessions
Judge, Mahabubnagar, being aggrieved by the Judgment of the
trial Court dated 27-09-2013 by which they were convicted for the
offence under Sections 364, 364-A, 302 r/w 34 I.P.C. and under
Sections 201 and 404 I.P.C. and sentenced to undergo different
imprisonments including Imprisonment for life and fine, have
challenged the said Judgment by filing three separate appeals, A.1
has filed criminal appeal No.973 of 2013 and challenged his
conviction for the offences under Sections 364, 364-A, 302 r/w 34
I.P.C. A2 has filed criminal appeal No.495 of 2015 and challenged
his conviction under Sections 364, 364-A, 302 r/w 34 I.P.C., and
under Section 201 I.P.C. A3 has filed criminal appeal No.1166 of
2013 and challenged his conviction for the offence under Sections
364, 364-A, 302 r/w 34 I.P.C. and under Sections 201 and 404
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I.P.C. Though they filed different appeals, the grounds in all the
appeals are almost one and the same.
2. The learned counsels appeared on behalf of the
appellants have submitted similar arguments. The learned Public
Prosecutor also advanced common arguments in all the three
appeals. Therefore, a common Judgment would dispose of the
three appeals.
3. An unfortunate incident that happened at the house of
PWs.1 and 2-wife and husband, on 17-04-2013 in which the
daughter of PWs.1 and 2 was kidnapped and later her body was
recovered from the well which belongs to PW.5 is the basis for the
charge sheet filed against these appellants. The de-facto
complainant, who is examined as PW.1 before the trial court and
wife of PW.2 has lodged a complaint before PW.19 with an
allegation that during her absence from the house, some unknown
offenders kidnapped her daughter Shriya, hereinafter will be
referred as deceased. Based on said complaint, the police
Mahabubnagar Rural registered a case for the offence U/S 363 IPC
and PW.19 took up the investigation and he has examined PW.1
and recorded her statement. He proceeded to the house of PW.1
where he has examined PW.2 and PW.3. He has prepared Ex.P15
scene of offence panachanama and subsequent investigation was
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conducted by PW.20. PW.20 who conducted major portion of the
investigation, filed charge sheet alleging that A.1, who was
working in the data centre of PW.2, having noticed the huge cash
inflow to the employer, hatched a plan to kidnap the daughter of
PW.2 for demanding money and to complete the said offence he
took the help of A.2 and A.3. The prosecution has alleged that on
the date of offence the father of victim, who was working as
lecturer had been to college and PW.1, the mother of victim left
the house for learning car driving. A.1 called A.2 over mobile
phone and A.2 and A.3 came to the house of PW.1 and that A.1
handed over the girl to A.2. The prosecution has further alleged
that A.2 and A.3 took her in an auto which was driven by A.2
herein. A.3 sat in the auto with the said girl and they proceeded
to Christianpally. It is also alleged in the charge sheet that A.2
and A.3 as per their pre-plan and as per the instructions of A.1,
killed the baby by throttling her and removed her silver anklets,
both A.2 and A.3 kept the dead body in a gunny bag, went to
Polkampalli Village, and threw the dead body in a well.
4. According to the prosecution, the motive for above
said offence is money. It is alleged in the charge sheet that A.1
was working in the data entry work of PW.2 which is known as
"CORP", found that A.2 was getting more income on the said work
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and hatched this plan to kidnap the daughter of PWs.1 and 2 with
the help of A.2 and A.3 and accordingly, he has executed the plan
with a view to demand money for her release.
5. However, the prosecution did not try to explain as to
why A.1 instructed A.2 and A.3 to kill the victim girl even before
they called PWs.1 and 2 and demanded ransom.
6. The prosecution has alleged that A.1 had informed
PW.1 who was away from the house for learning car driving as if
somebody entered the house and kidnapped the girl. Therefore,
PW.1 lodged a complaint before the police based on which they
have registered the case of kidnap. The prosecution has alleged
that after the death of the deceased, A.2 started calling PW.2
through coin box phones and demanded ransom. It is also alleged
in the charge sheet that PW.20 suspected A.1 and apprehended
him in a suspicious circumstance and A.1 said to have confessed
the commission of offence and that he led the police to the house
of A.2. The prosecution has alleged that PW.20 seized the auto
that was used in the commission of offence and A.2 said to have
confessed his involvement in the offence and lead the police and
mediators to the well from which the dead body of the deceased
was recovered. According to the prosecution version, A.3 said to
have made an extra judicial confession about the above offence
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before PW.4 and that he produced A.3 before the police. The
Investigating Officer has completed the other formalities including
inquest on the dead body of the deceased, sent the dead body for
post-mortem examination etc., and after completion of the
investigation, filed charge sheet alleging that the accused have
committed the offences under Sections 364, 364-A, 302 r/w 34,
201 and 404 I.P.C.
7. The prosecution has alleged that the deceased was
daughter of PWs.1 and 2. PW.1 was working as Chemistry
Lecturer in Government Degree College. PW.2 is running a data
entry institution/office. The alleged offence was committed at the
house of PWs.1 and 2. There is no eyewitness to the alleged
offence. The entire case of prosecution is based on circumstantial
evidence and prosecution tried to prove the case on the basis of
call data records, alleged confession of accused and recovery of
the dead body of the deceased based on alleged confession of A2.
The charge sheet goes to show that soon after the registration of
the case, the investigating officer i.e., PW.20 suspected the
involvement of A.1, tried to secure him but he was found missing.
However, he was apprehended under suspicious circumstances and
said to have been interrogated before the mediators. The alleged
confession of A.1 is basis for arrest and interrogation of A.2. The
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prosecution has alleged that A.2 confessed the commission of
offence and led the police to the place where they threw the dead
body of the deceased in a well. In order to connect the
accused No.3 with this case, the prosecution relied on the extra
judicial confession said to have been given by A.3 before PW.4.
8. The trial Court framed different charges against the
accused. A.1 to A.3 are charged under Sections 364, 364-A, 302
r/w 34 I.P.C. In addition to the above charges A.2 and A.3 were
charged under Section 201 and A.3 was charged under Section
404 I.P.C. also. To prove the charges, the prosecution examined
20 witnesses and marked Exs.P1 to P44 and MOs.1 to 7. The
accused neither examined any witness nor marked any documents
or material objects.
9. The learned trial Judge believed the case of
prosecution and having relied on call data records, confession said
to have been made by the accused and with the aid of answers of
the accused at the time of their examination under Section 313
Cr.P.C. concluded that the charges framed against them are
proved.
Accordingly, convicted them under Section 235 (2) Cr.P.C. A.1
to A.3 are sentenced to suffer imprisonment for life each for the
offence under Section 364-A IPC and to pay fine of Rs.1000/- each,
and sentenced to suffer imprisonment for life each for the offence
under Section 302 r/w 34 IPC and to pay fine of Rs.1000/- each, and
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sentenced to suffer rigorous imprisonment for a period of ten years
each and to pay a fine of Rs.1,000/- each, in default to undergo
simple imprisonment for a period of three (3) months each for the
offence under Section 364 IPC.
A.3 is sentenced to suffer rigorous imprisonment for a period of
three (3) years and to pay a fine of Rs.1,000/-, in default to undergo
simple imprisonment for a period of three (3) months for the offence
under Section 404 IPC.
A.2 and A.3 are sentenced to suffer rigorous imprisonment for a
period of three (3) years each and to pay a fine of Rs.1,000/-each, in
default to undergo simple imprisonment for a period of three (3)
months for the offence under Section 201 IPC.
The sentence of imprisonment now imposed for the offence
under Section 364 IPC against A.1 to A.3, sentence imposed against
A.3 for the offence under Section 404 IPC and sentence imposed
against A.2 and A.3 for the offence under Section 201 IPC, shall
merge in the imprisonment for life imposed against them for the
offences under Sections 364-A and 302 r/w 34 IPC.
10. The learned counsel for the first accused has submitted
that the entire case started when A.1 said to have made a call to
PW.1, who was away from the house for learning car driving. The
alleged offence took place on 17-04-2013 which was a working
day. PW.1 is a Government Lecturer. According to the allegations
in the charge sheet, the deceased was a school going girl. The
prosecution did not try to explain how come PW.1 went to learn
car driving on a working day and as to how the victim girl was
present in the house on the date of offence. He has also
submitted that the prosecution could not place any record to show
that PW.1 received a call on her mobile phone when she was
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supposed to be away from the house. This circumstance creates
any amount of doubt whether the girl was really kidnapped from
the house in the absence of her mother or whether the police have
shifted the scene of offence from some other place to the house
only to substantiate the 'Last Seen Theory' against A.1. The
learned counsel further argued that the trial Court gave
unnecessary importance to the call data records which were
marked without the certificate under Section 65-B of Indian
Evidence Act. He has relied on a Judgment between "Ravinder
Singh Alias Kaku Vs. State of Punjab"1, wherein it was held
that in the absence of certificate u/s 65-B of Evidence Act, the call
records are not admissible because section 65-B(4) is a mandatory
requirement. He has further argued that in the absence of
certificate, these records cannot be looked into. If the call records
are excluded, there is no other material to connect the accused
and even if the call data records are accepted, the prosecution did
not place any material to show that A.1 made calls to PW.1 or to
the other accused.
11. The prosecution has alleged that A.1, who used to pick
and drop the victim at the school, took A.2 to the said school to show
the victim girl and one day prior to the alleged kidnap, he contacted
A.2 over phone and explained his plan. It is also alleged
1
(2022) 7 SCC 581
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that A.2 was using the SIM that was provided to PW.8 and he used
the said number to contact A.1. As per the case of prosecution, on
17-04-2013
PW.1 left the house to learn car driving, PW.2 who was working as lecturer left to his college. The victim who was a school going girl was at home and taking the situation as advantage, A.1 called A.2 and A.3 and handed over the victim to them. Then he made a call to PW.1 and informed her as if some unknown offender kidnapped her daughter. It is also alleged that the kidnap was for the sake of money but as per the evidence placed by the prosecution and as per the alleged confession, it is stated that when A.2 and A.3 were taking the girl in a auto, A.1 said to have instructed A.2 and A.3 to kill the girl and as such, A.3 killed her by smothering and throttling and both A.2 and A.3 disposed the dead body in a well.
12. In order to establish the above case, the prosecution has to prove that the accused had a plan of kidnapping the victim for money on 17-04-2013, the victim was alone at the house and A.1 called A.2 and A3 to the house of PW.2 and handed over her to A.2. It must be proved beyond all reasonable doubt that at the instance of A.1 only A.2 and A.3 shifted the victim in auto and as per the instructions of A.1 while they were taking the girl, A.3 killed her in the auto and then disposed the dead body in a well.
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The prosecution must prove that A.1 and A.2 were arrested as deposed by the Investigating Officer and they made confession which leads the investigating officer to recover the dead body and silver anklets of the deceased and A.3 made extra judicial confession before PW.4.
13. Admittedly, there is no eyewitness to the above offence. The prosecution tried to establish the guilt of accused by way of circumstantial evidence and relied on the alleged call data records of the accused. When once the prosecution wanted to rely on circumstantial evidence, the prosecution must establish all the facts and circumstances through which it sought to establish the guilt of accused. The chain of circumstances must be complete and can lead to a conclusion that the accused alone have committed the offence.
14. There are number of Judgments on these aspects from the Hon'ble Apex Court and from various High Courts.
15. In a case between "Hukam Singh v. State of Rajasthan"2, the Hon'ble Apex Court was pleased to observe as follows :
"In case of circumstantial evidence, all the incriminating facts and circumstances should be fully established by cogent and reliable evidence and the facts so established must be consistent with the guilt of the accused and should not be capable of being 2 AIR 1977 Supreme Court 1063 11 SSRN,J Crl.Appeals No.973, 1166/2013 and 495 of 2015 explained away on any other reasonable hypothesis than that of his guilt. In short, the circumstantial evidence should unmistakably point to one and once conclusion only that the accused person and none other perpetrated the alleged crime. If the circumstances proved in a particular case are not inconsistent with the innocence of the accused and if they are susceptible of any rational explanation, no conviction can lie".
16. In a case between "Earabhadrappa v. State of Karnataka"3, the Hon'ble Apex Court was pleased to observe as follows :
"In cases in which the evidence is purely of a circumstantial nature, the facts and circumstances from which the conclusion of guilt is sought to be drawn must be fully established beyond any reasonable doubt and the facts and circumstances should not only be consistent with the guilt of the accused but they must be in their effect as to be entirely incompatible with the innocence of the accused and must exclude every reasonable hypothesis consistent with his innocence".
17. In a case between "Eradu and others v. State of Hyderabad"4, the Hon'ble Apex Court was pleased to observe as follows:
"It is a fundamental principle of criminal jurisprudence that circumstantial evidence should point inevitably to the conclusion that it was the accused and the accused only who were the preparators of the offence and such evidence should be incompatible with the innocence of the accused".
3 AIR 1983 Supreme Court 446 4 AIR 1956 Supreme Court 316 12 SSRN,J Crl.Appeals No.973, 1166/2013 and 495 of 2015
18. In a case between "State of Uttar Pradesh v.
Sukhbasi and others"5, the Hon'ble Apex Court was pleased to observe as follows:
"In a case in which the evidence is of a circumstantial nature, the facts and circumstances from which conclusion of guilt is sought to be drawn by the prosecution must be fully established beyond all reasonable doubt and the facts and circumstances so established should not only be consistent with the guilt of the accused, but they must be entirely incompatible with the innocence of the accused and must exclude every reasonable hypotheses consistent with his innocence."
19. In a case between "Balwinder Singh v. State of Punjab"6, the Hon'ble Apex Court was pleased to observe as follows:
"In cases in which the evidence is purely of a circumstantial nature, the fact and circumstances from which the conclusion of guilt is sought to be drawn must be fully established beyond any reasonable doubt, and the fact and circumstances should not only be consistent with the guilt of the accused, but they must be such in their effect as to be entirely incompatible with the innocence of the accused and must exclude every reasonable hypothesis, consistent with his innocence."
20. In a case between "Ashok Kumar Chatterjee v. State of Madhya Pradesh"7, the Hon'ble Apex Court was pleased to observe as follows:
5 AIR 1985 Supreme Court 1224 6 AIR 1987 Supreme Court 350 7 AIR 1989 Supreme Court 1890 13 SSRN,J Crl.Appeals No.973, 1166/2013 and 495 of 2015 "When a case rests upon circumstantial evidence such evidence must satisfy the following tests:
1) The circumstances, from which an inference of guilt is sought to be drawn, must be cogently and firmly established.
2) Those circumstances should be of a definite tendency unerringly towards guilt of the accused.
3) The circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and no one else, and
4) The circumstantial evidence in order to sustain conviction must be complete and incapable of explanation on any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence.
21. In this case, the prosecution has claimed that PW.20 suspected the involvement of A.1 and tried to apprehend him, but he was found missing. But he was subsequently apprehended by I.D. party at 1.00 p.m., on 18-04-2013, and on interrogation, he said to have made confession. However, PW.20 no where stated anything as to why he suspected A.1. Apart from the alleged confession of accused, the prosecution placed reliance on the call data records. PW.20 deposed that he has seized the cell phones of A.1, A.2 along with the SIM cards and he has admitted that he did not mention the seizure of SIM cards in the seizure mahazar. PW.20 claimed that his evidence did not disclose that A.2 made 14 SSRN,J Crl.Appeals No.973, 1166/2013 and 495 of 2015 calls to the land line of PW.2. In his cross-examination, PW.20 admitted that there is no evidence to show that A.2 made calls from his cell phone. PW.20 deposed before the Court that A.2 informed the mediators that he made calls from coin box phones at RK General Store, T.D. Gutta, Old Market and from a kirana shop near railway station.
22. According to PW.20, he received information from A.2 that he made a call to PW.2 between 10.00, 1.00 p.m. to 1.30 p.m., on 17-04-2013 through coin box phone at RK General Store and other two calls from two different phones. But PW.20 did not file the call data records of the above said coin box phones. There is no evidence to show that PW.2 received calls from these coin box phones. It is true as per Ex.P25 panchanama, it is stated as if A.2 informed mediators by showing the three different coin box phones that he contacted PW.2 through the said coin box phones for demanding ransom. However, the Investigating Officer did not examine the shop owners where the said coin box phones were arranged to prove that it is A.2 who made calls from those coin box phones to the land line of PW.2. To connect the calls of coin box phones, the Investigating Officer sought to rely on the evidence of PW.11 Divisional Engineer BSNL. But he did not file the certificate as required under section 65-B of Evidence Act.
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23. The de-facto complainant i.e., mother of the deceased deposed before the Court that she left the house at 10.30 am on 17-04-2013 in order to learn car driving. As per her own evidence, she was working as lecturer in Government Junior College for Girls, Mahabubnagar. According to the evidence of PW.2, he was working as lecturer and on 17-04-2013 he left to the college to attend the classes. The learned counsel for A.1 argued that when 17-04-2013 is a working day, how PW.1 who was working as lecturer left the house for learning car driving is not explained. It is a fact that according to the prosecution case, the victim girl was a school going child. To show that she was a student, the prosecution has examined PW.7 the principal of the school where she was studying. But surprisingly, it is the case of prosecution that on the date of alleged offence, the victim girl was present at the house. According to the prosecution, the alleged kidnap took place after 10.30 a.m., and as per the evidence of PW.1, she received a call from A.1 at 11.30 a.m., on her mobile and she was informed by A.1 about the alleged kidnap. PW.1 further deposed that she has informed the alleged kidnap to her husband.
24. In view of the above stated evidence, she must have informed the said fact to her husband through her mobile phone.
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PW.2 deposed before the Court that while he was at college at about 11.30 p.m., he received a call from PW.1 and he was informed about the missing of his daughter from the house, therefore, he rushed to the house. If the evidence of PWs.1 and 2 is taken into consideration, on 17-04-2013 while PW.1 was at driving class and while PW.2 was at the college, PW.1 received call from A.1 but the Investigating Officer did not try to place the call data records of PW.1 and PW.2. In the normal course of events PW.1 ought to have attended classes and victim must have gone to the school, the prosecution did not try to collect any record to show that PW.1 did not attend the classes and victim did not go to school on that particular day.
25. If really A.1 made a call at 11.30 a.m., from his mobile phone, it may not be difficult for the prosecution to prove that a call was made from the mobile phone of A.1 to the mobile phone of PW.1. If A.1 made a call not from his mobile but from a different land line or cell phone, PW.1 must have suspected A.1, and she must have stated the same in her complaint or at least in her statement before the Investigating Officer. But it is not the case of PW.1 that A.1 made call from some other mobile/land line phone. Therefore, there is some force in the arguments of the learned counsel for A1 that the alleged kidnap might not have 17 SSRN,J Crl.Appeals No.973, 1166/2013 and 495 of 2015 occurred as alleged by the prosecution at 10.30 a.m., on 17-04-2013, it must have occurred either prior to 17-04-2013 or in some other manner and victim must have been kidnapped from some other place and only to establish that the deceased was last seen with A.1, the prosecution must have created the entire episode. As rightly argued by the learned counsel for A.1, there is no explanation for the presence of victim girl in the house and about the defacto complainant attending car driving learning class on a working day.
26. If the evidence of PW.20 and mediators is accepted to be true, PW.20 has got an idea as to the route through which A.2 and A.3 took the girl from the house of PW.2 to the well where the body of the deceased was recovered, but it is not known whether the Investigating Officer tried to verify whether there are any C.C. T.V. cameras on the said route. Now-a-days, it is very common for the private individuals also to install C.C.T.V. cameras to their houses. It is not known whether there are any such cameras at RK General store and other two kirana shops from which A.2 said to have made calls to the house of PW.2. PW.20 who deposed that he has inserted a coin and made call from coin box phones to know the number, did not try to disclose the said number nor he made any attempt to get the call data records of 18 SSRN,J Crl.Appeals No.973, 1166/2013 and 495 of 2015 coin box phones. Therefore, an inference can be drawn that the Investigating Officer deliberately did not obtain call data records of the coin box phones or having obtained, he did not place them before the Court as they are against to the case.
27. Another important aspect herein is Investigating Officer did not obtain Section 65-B certificate for the call data records of A.1. Except Ex.P11 i.e. certificate obtained from TATA Tele Services under Section 65-B for the mobile No.7207117175 which was in the name of PW.8, Investigation Officer did not obtain such certificate for the other mobile phones. According to the case of prosecution, A.1 was using a dual SIM mobile phone and the Investigating Officer placed some documents to show that A.1 was using two mobile numbers. However, PW.9 who was examined to prove the call data records of A.1 did not file the required certificate under Section 65-B of Evidence Act. The learned District Judge relied on a Judgment between "State (NCT) of Delhi V. Navjoth Sandhu @ Asan Guru"8 held that even in the absence of 65-B certificate, the evidence of concerned operator with regard to call data records can be accepted but however, the said Judgment is overruled in a subsequent Judgment of the Hon'ble Apex Court in "Anwar V. V.K.Bhasheer and others"9.
8 AIR 2005 SC 3820 9 (2014) 10 SCC 473 19 SSRN,J Crl.Appeals No.973, 1166/2013 and 495 of 2015
28. In the light of above Judgment, the evidence of PW.9 about the call data records and other details of mobile phones supposed to be owned and used by A.1 cannot be taken into consideration. The prosecution has alleged that A.2 has used one mobile phone which was in the name of PW.8. PW.8 deposed before the Court that he gave his SIM card to A.2. There is nothing in the cross-examination of PW.8 to disbelieve his evidence and in his examination under Section 313 Cr.P.C. A.2 has admitted that he was using the mobile obtained from PW.8. Therefore, the evidence of PW.10 who has produced 65-B certificate vide Ex.P11 proved that A.2 was using the mobile phone of PW.8 and he made some calls and received some calls on the said mobile. But the said evidence is not establishing the alleged conversation of accused/appellant.
29. Since the prosecution has alleged that A.1 hatched a plan to kidnap the victim with the help of the other accused and in pursuance of his plan, he contacted A.2 on the previous night and also on the date of offence, it is for the prosecution to prove those calls. In view of the above referred Judgment of the Hon'ble Apex Court, the evidence of PW.9 and documents vide Ex.P5, P6, P7 cannot be considered.
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30. The mother of the deceased i.e., PW.1 has presented Ex.P1 to the police on 17-04-2013. As per the endorsement on Ex.P36-FIR, it shows that the complaint was presented to police at 12.00 noon on 17-04-2013 but it reached the Magistrate at 8.00 p.m., on 17-04-2013.
31. As could be seen from Ex.P11, there were number of calls from mobile phone that was used by A.2 from 16-04-2013 to 18-04-2013. The Investigating Officer did not try to analyze all those calls except filing Ex.P11, no evidence is placed to establish the tower locations from which the above calls were generated. Similarly, no evidence is collected to show that there were calls from the above referred coin box phones to the land line of PW.2. Of course PW.11 Divisional Engineer BSNL deposed before the Court that they have supplied Ex.P14 call details, but again this document was not supported by 65-B certificate thereby, it cannot be considered.
32. In order to connect the accused, the Investigating Officer has produced Ex.P25 panchanama. According to Ex.P25, A.2 lead the police and mediators to three different coin box phones and it is stated in the panchanama that investigation officer could find out the numbers of the phones by using 1 Rupee coin and identified the mobile numbers as 9949244753, 21 SSRN,J Crl.Appeals No.973, 1166/2013 and 495 of 2015 9346814317 and 9949949847. It may not be difficult for the Investigating Officer to get the call details of these three mobile numbers but Investigating Officer did not evince any such interest.
33. There is no dispute about the kidnap of the daughter of PW.1 and evidence on record show that her dead body was recovered from a well on 18-04-2013. The trial court having held that in a case based on circumstantial evidence, the chain of all circumstances shall complete, believed the case of prosecution based on call data records, confession of accused, and answers of the accused to the questions put to them in 313 Cr.P.C. examination. The purpose of examination of the accused u/s 313 Cr.P.C is to explain the incriminating evidence produced by the prosecution with a view to give him/her to offer his/her reply. The section itself declares the object in explicit language and that it is for purpose of enabling the accused personally to explain any circumstances to appear in the evidence against him. In this connection, the following few Judgments are relevant.
34. In a Judgment between "Raj Kumar Singh @ Raju @ batya v. State of Rajasthan"10, the Hon'ble Apex was pleased to observe that :
"In a criminal trial the purpose of examining the accused person under section 313 Cr.P.C is to meet the requirement of the 10 AIR 2013 SC 3150 22 SSRN,J Crl.Appeals No.973, 1166/2013 and 495 of 2015 principle of natural justice that audi-alterum partem. This means that the accused may be used to furnish some explanation as regards the incriminating circumstances associated with him and the Court must take note of such explanation. In case of circumstantial evidence, the same is essential to decide whether or not the chain of circumstances is complete. No matter how week the evidence of the prosecution may be, it is the duty of the court to examine the accused, and to seek his explanation as regards the incriminating material that has surfaced against him".
35. Since the accused is not examined on oath while he was examined u/s 313 Cr.P.C. his version or his case against the evidence adduced by prosecution, cannot be taken as evidence against him. Even it is right of accused to keep silence or to give any false statement which does not bind him or the court not allowed to prosecute him on false statements given by him in examination.
36. In another Judgment between "Sanatan Naskar and Anr V. State of West Bengal"11 "The statement of accused recorded u/s 313 of Cr.P.C. can be used to test veracity of exculpatory of the admission, if any, made by the accused. It can be taken into consideration in any enquiry or trial but still it is not strictly evidence in the case. The provisions of section 313(4) of Cr.P.C. explicitly provides that the answers given by the accused may be taken into consideration in such enquiry or trial and put in evidence for or against the accused in any other enquiry into or trial for, any other offence for which such answers may tend to show he has committed. In other words, the use is permissible as per the provisions of the code but has its own 11 AIR 2010 SC 3570 23 SSRN,J Crl.Appeals No.973, 1166/2013 and 495 of 2015 limitations. The Courts may rely on a portion of the statement of the accused and find him guilty in consideration of the other evidence against him led by the prosecution, however, such statements made under this Section should not be considered in isolation but in conjunction with evidence adduced by the prosecution. Another important caution that Courts have declared in the pronouncements is that conviction of the accused cannot be based merely on the statement made under section 313 of the Cr.P.C. as it cannot be regarded as a substantive piece of evidence".
37. In another Judgment between "Dehal Singh v. State of H.P."12, it was observed that :
"The statement of the accused u/s 313 of Cr.P.C. since it was recorded without administering oath, it cannot be treated as evidence within the meaning of Section".
38. In a Judgment between "Mohan Singh v. Prem Singh & another"13, the Hon'ble Apex Court was pleased to observe as follows:
"The statement of accused u/s 313 Cr.P.C. is not a substantive piece of evidence. It can be used for appreciating evidence led by the prosecution to accept or reject it. It is, however, not a substitute for the evidence of the prosecution. If the exculpatory part of his statement is found to be false and the evidence led by the prosecution is reliable, the inculpatory part of his statement can be taken aid of to lend assurance to the evidence of the prosecution. If the prosecution evidence does not inspire confidence to sustain the conviction of the accused, the inculpatory part of his statement u/s 313 Cr.P.C. cannot be made the sole basis of his conviction".
12 AIR 2010 SC 3594 13 AIR 2002 SC 3582 24 SSRN,J Crl.Appeals No.973, 1166/2013 and 495 of 2015
39. In view of the above Judgments binding on this Court, the observations made by the trial Court that the statements/answers of accused can be considered to believe the involvement of accused are incorrect and such answers cannot be used to connect the appellants to this case.
40. In order to prove the involvement of A.1, the prosecution relied on the evidence of PW.15 and PW.20. PW.15 is one of the mediators before whom A.1 said to have confessed the commission of offence but what all deposed by PW.15 is inadmissible because by the time of the alleged confession A.1 was in the custody of police, nothing was seized in pursuance of alleged confession and except saying that A.1 lead the police and mediators to the house of A.2, the other portion of the alleged confession is inadmissible.
41. The Investigating Officer, who was examined as PW.20 deposed before the Court that after the arrest of A.1, he made confession and stated about the involvement of A.2 and A.3 and so saying he took the police and mediators to the house of A.2. In this particular case, the confession said to have been made by A.2 before the mediators goes to show that soon after they killed the victim and threw her dead body into a well, they returned and they made calls to the father of the victim 25 SSRN,J Crl.Appeals No.973, 1166/2013 and 495 of 2015 demanding money, they have directed PW.2 to arrange cash and leave the cash in front of a Syndicate Bank. But since A.1 did not met them on the night these appellants felt that PW.2 might have informed the police about their demand, they did not go to the Syndicate Bank at which place they directed PW.2 to arrange to leave the cash. According to the case of prosecution, A.1 was arrested by I.D. party on 18-04-2013. PW.20 deposed before the Court that he has interrogated A.1 before PW.15 and other mediators and he said to have led the police and mediators to the house of A.2 and A.2 was readily available at his house. If really A.2 involved in the kidnap and murder and if both A2, A3 disposed the dead body as claimed by the prosecution, when they could not meet A.1 as per their understanding and avoided to collect the cash due to fear, A.2 will not venture to go to the house to facilitate the arrest by police.
42. The prosecution, to prove its case apart from relying on call records, also relied on the alleged confession of the accused. According to the allegations in the charge sheet and as per the evidence of PW.20, soon after the alleged arrest of A.1 by the I.D. party, he was interrogated in the presence of PW.15 and another mediator and A.1 said to have confessed the commission of offence with the help of A.2 and A.3. Even as per his evidence 26 SSRN,J Crl.Appeals No.973, 1166/2013 and 495 of 2015 by the time of said confession A.1 was in the custody of Police, therefore the said evidence cannot be treated as admission or confession within the meaning of sections 24, 25 and 27 of the Indian Evidence Act. As per provisions of Evidence Act, no confession of an accused more particularly when he is in the custody of Police is admissible unless it leads to any recovery. The trial court believed the evidence of PW.15 on the ground that A.1 in pursuance of his confession produced his mobile and his confession led the police to recover the auto used in the commission of offence. The prosecution want to prove A.1 had obtained a particular mobile number, through the evidence of Nodal Officer and by filing copy of the application filed by A.1 and identity proof. But there is no evidence to believe that A.1 has used that SIM in the commission of the offence. Similarly, there is no evidence to believe that these appellants have kidnapped the victim in this auto. The Investigation Officer did not collect any incriminating material like fingerprints, hair etc., of the deceased from the auto. He did not try to collect any Closed-Circuit TV footage to show that the auto was used in the commission of offence. In such a case the alleged confession of A.1 cannot be accepted.
27 SSRN,J
Crl.Appeals No.973, 1166/2013
and 495 of 2015
43. The next link in the chain of circumstances which the prosecution wants to rely on, is the recovery of silver anklets of the deceased from the accused. To prove the said fact, the prosecution is relying on the evidence of mediators and mother of the deceased. There are no special identification marks on these material objects to say that they belong to the deceased. The value of the said Anklets may not be more than Rs.500/-. The contention of prosecution that these accused having kidnapped the deceased for ransom, killed her before they made any call to her parents for money, threw the dead body into a well and kept the silver anklets is highly unbelievable.
44. The next circumstance relied on by prosecution is the alleged extra judicial confession of A.3 before PW.4. The learned counsel for the accused No.3 argued that extra judicial confession is a weak piece of evidence, and it cannot be relied without proper support. For this proposition, the learned counsel relied on number of Judgments.
45. In a Judgment between "Jagta Vs. State of Haryana AIR"14, the Hon'ble Apex court was pleased to observe that "The evidence about an extra judicial confession is in the nature of things a weak piece of evidence. If the same is lacking in probability, there would be no difficulty in rejecting it.
14
1974 SC 1545
28 SSRN,J
Crl.Appeals No.973, 1166/2013
and 495 of 2015
46. In another Judgment between "Naga Reddy Narasa Reddy and others Vs. State of AP"15, the court observed that "Confession is a direct acknowledgement of guilt. There is no legal bar to convict an accused based on voluntary confession. But it is settled law that the rule of prudence requires that whenever possible, the confession should be corroborated by independent evidence. When more than one is tried jointly for the same offence, section 30 lays down that the confession made by one of the persons affecting himself and others is proved, the court may take into consideration the confession as against the other persons as well as against the maker of the confession".
47. It was also observed that where the extra-judicial confession of one of the accused in murder case was found to be not trustworthy; did not find corroboration; even his presence at the spot was found to be doubtful; the evidence of other witnesses suffered from fatal infirmities and therefore unreliable; they did not speak of presence of the accused at the occurrence and the possibility of introduction of the extra-judicial confession at the later stage to implicate some of the accused, such confession was liable to be discarded and could not form basis for convicting the accused.
48. In the light of the above discussions and Judgments referred above, call data records shall not be considered unless filed along with the certificate under Section 65-B of Evidence Act, 15 1994 Crl.L.J. 2545 29 SSRN,J Crl.Appeals No.973, 1166/2013 and 495 of 2015 confession of accused without leading to any recovery shall not be accepted and conviction shall not be based on the answers of accused during their examination under Section 313 Cr.P.C.
49. In the case on hand, since there is no eye-witness to the offence, the prosecution tried to establish the guilt of accused on the basis of circumstantial evidence. The alleged kidnap of the deceased from the house of PW.1 itself is doubtful. The prosecution failed to prove that the girl was kidnapped in the absence of PW.1 and that A.1 informed the said offence through his mobile. There is no evidence to believe that A.2 and A.3 shifted the deceased from the house to the place where her dead body was found. The alleged phone calls by A.2, A.3 to the land line of PW.1 and PW.2 are not proved as per the procedure. The alleged confession of A.2 before the mediators is also not believable because his arrest at the house on the next date is itself doubtful. In view of the above, the answers of accused in 313 Cr.P.C. examination cannot be used as corroboration to the prosecution evidence. The prosecution failed to establish all the incriminating facts and circumstances against these appellants by cogent and reliable evidence. Therefore, these appellants are entitled to an acquittal.
30 SSRN,J
Crl.Appeals No.973, 1166/2013
and 495 of 2015
50. In the result, the Crl.Appeals filed by appellants No.1, 2 and 3 vide Criminal Appeal Nos.973, 1166 of 2013 and 495 of 2015 are allowed. The conviction and sentence recorded against the appellants/A1 to A3 in the Judgment in S.C.No.407 of 2013 on the file of Principle District and Sessions Judge, Mahabubnagar, for the offences punishable under Sections 364, 364-A, 302 r/w 34 I.P.C. and under Sections 201 and 404 I.P.C. are set aside and A.1 to A.3 are acquitted for the said offences. The appellants/A.1 to A.3 shall be set at liberty forthwith, if they are not required in any other cases. The fine amount if paid by the appellants shall be refunded to them.
__________________________ DR.JUSTICE G.RADHA RANI __________________________ JUSTICE SAMBASIVA RAO NAIDU Date: 18.11.2022 PLV 31 SSRN,J Crl.Appeals No.973, 1166/2013 and 495 of 2015